Supreme Court allows wiretapping immunity law to stand

The Supreme Court declined to review a lower court ruling in a case that challenged a Bush-era law (the FISA Amendments Act), retroactively giving telecommunications firms—including Verizon, Sprint, and AT&T—legal immunity after performing warrantless wiretapping at the government’s request.

The case, Hepting v. AT&T, was a class-action suit filed in 2006 by the American Civil Liberties Union and Electronic Frontier Foundation on behalf of customers. They originally sought billions of dollars in damages by arguing the telecom firms violated both users’ privacy and federal law. However, in the wake of this lawsuit and others like it, Congress passed the retroactive immunity law (FISA AA). The central question in the Hepting case was whether these immunity provisions were constitutional.

In 2011, the Ninth Circuit Court of Appeals affirmed (PDF) the district court's ruling, which confirmed congressional authority to delegate oversight power—allowing the Attorney General to step in and halt private party telecom cases in certain circumstances, such as Hepting. The Ninth Circuit found the US Constitution does not forbid such delegated action.

However, the EFF still has another case pending, Jewel v. NSA, which targets the federal agencies involved as well as the government officials behind them (including President George W. Bush and other members of his administration). The EFF will be filing a motion for summary judgment in Jewel later on Tuesday.

Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is due out in May 2018 from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar